Residents slap city council with lawsuit

Complaint alleges public meeting violations

The trouble keeps brewing over the Lake Oswego-Tigard water treatment plant and pipeline projects recently approved in West Linn.

Residents have fought long and hard to prevent the expansion of the plant nestled in the Robinwood neighborhood and its associated 4-foot-diameter pipeline. The projects were denied by the planning commission after much public testimony but approved by the city council earlier this year. Since then residents have filed an appeal of the projects to the state Land Use Board of Appeals.

Now a group is zeroing in on the West Linn City Council. A group of West Linn residents and a business owner have filed a lawsuit against four of the five members of the city council.

A complaint was filed April 12 in Clackamas County Circuit Court naming Mayor John Kovash and Councilors Jenni Tan, Mike Jones and Jody Carson. Each of those city council members also have an ethics complaint currently filed against them in another matter. They were served the complaint just prior to Monday night's city council meeting.

The complaint alleges the council violated public meeting laws by conducting meetings and executive sessions behind the scenes to orchestrate the approval of the two conditional use permits.

Many of those are the same names listed on the LUBA appeal. Also, many of the plaintiffs do not live in the vicinity of the water treatment plant.

According to a statement from the plaintiffs, This action is not being taken because of the results of the city councils decision on the LOT water project, but rather because of the process used by the mayor and the council to arrive at those results.

The process the council used to approve the projects was against Oregon law and the decisions are not in the best interest of the citizens of West Linn, according to the complaint.

Near the end of a series of meetings earlier this year, each council member declared his or her intention to vote. It appeared a split decision was coming as Councilor Thomas Frank had recused himself from the hearings because he voted on the first round as a planning commissioner. Kovash and Carson were leaning toward approval and Tan and Jones were recommending denial. At that time, Kovash inadvertently introduced new evidence that he had ex parte communications with one or more neighborhood association presidents. The council quickly decided it needed to reopen the record for another two weeks before voting because of the misstep.

Over the course of the two weeks, Councilor Mike Jones worked with city staff to add more conditions of approval to the projects that would sway his vote to approval. City Manager Chris Jordan said he had been in contact with both Jones and LOT officials in regard to the new conditions, and that other city staff, such as attorneys, dealt with drafting the new conditions.

By the morning of the city council meeting, counciorsl had received a copy of Jones proposed conditions of approval for their review prior to the meeting.

Thats the way the process works, and thats the way process should work, Jordan said, saying he talked with each of the councilors many times over the course of the application process.

Legally, councilors can interact with city staff and with each other one on one as long as they are not trying to negotiate votes.

However, the plaintiffs suspect backroom meetings and improper conversations. I feel pretty strongly that they held executive sessions that covered materials or agenda items that didnt qualify for executive sessions, said King, who served as mayor from 2001 to 2004. I was informed that they avoided having meetings by having staff send confidential memos.

Jordan said that is not the case and that the council has obeyed all public meeting laws.

The city council takes very seriously its compliance with Oregon public meeting laws, Kovash said. All council deliberations and decisions took place in noticed public meeings.

King said he got involved when he saw issues arising in the Robinwood neighborhood.

The neighborhood was being treated very unfairly," he said. "Ive never seen a council, at least in West Linn, that didnt protect and defend the citizens they are representing until I saw this happen. I think they were taking actions to directly and intentionally damage the quality of life of citizens in West Linn.

Kovash disagreed.

The council approved LOT land use applications based on their compliance with West Linn code and their significant benefit to West Linn water ratepayers," he said. "Our decision was based on information contained in 12,000 pages of submittals, all of which can be reviewed online at westlinnoregon.gov.

The group contends that residents were instructed not to talk to the councilors and were shut out of the entire process. Because of legal concerns of ex parte communication, the citys attorney had advised the council not to have conversations about the projects.

Keeping the public out of the publics business may not be a crime, but it is a terrible precedent and bad policy, King said. I feel they just shouldnt be councilors frankly.

The mayor and the council, supported by the city manager and city attorneys, have been guilty of improper behavior toward the citizens of West Linn since the LOT proposal first began, according to the statement from the group.

We are hoping to achieve transparency, Gerber said. We felt that was a real violation of the process.

Kovash said, The city council values its reputation as an open and transparent government dedicated to the long-term viability of this community.

In the complaint, the plaintiffs call for the water treatment plant and pipeline approvals to be invalidated and seek coverage of attorney fees. The complaint also seeks the court to hold each councilor and the mayor personally liable for any costs or attorney fees awarded to the plaintiffs.

However, because the lawsuit against the councilors is based on them acting in their elected roles, they will be represented by a city attorney, according to Jordan.

The mayor and councilors were expected to hold an executive session regarding the complaint Wednesday evening, after this paper went to press.